BILL ANALYSIS
SB 1876
Page 1
Date of Hearing: June 25, 1996
Counsel: Jennifer P. Anderson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Paula L. Boland, Chair
SB 1876 (Solis) - As Proposed to be Amended in Committee
Majority vote
SUMMARY: Establishes a general rule of admissibility in criminal
domestic violence cases for evidence that the defendant has
committed acts of domestic violence on other occasions.
Specifically, this bill:
1) Creates an exception to the general rule against the
admissibility of character evidence for domestic violence cases
so that in a criminal action in which the defendant is accused
of an offense involving domestic violence, evidence of the
defendant's commission of other domestic violence will
generally be admissible to show the defendant's disposition to
commit such offenses.
2) Expressly states that the court shall maintain authority to
exclude evidence if its probative value is substantially
outweighed by its prejudicial effect under Evidence Code
Section 352.
3) Expressly states that the provisions of this bill shall not be
construed to limit or preclude the admission or consideration
of evidence under any other statute or case law.
4) Requires that in an action in which evidence is to be offered
under the provisions of this bill, the people shall disclose
the evidence to the defendant, including statements of
witnesses or a summary of the substance of any testimony that
is expected to be offered, at least 30 days before the
scheduled date of trial or at a later time as the court may
allow for good cause.
5) Provides that evidence of acts occurring more than 10 years
before the charged offense is inadmissible under the provisions of
this bill, unless the court determines that the admission of this
evidence is in the interest of justice.
6) Defines "domestic violence" to mean "abuse committed against an
adult or a fully emancipated minor who is a spouse, former
spouse, cohabitant, former cohabitant, or person with whom the
suspect has had a child or is having or has had a dating or
engagement relationship." This is the definition of domestic
violence found in existing Penal Code Section 13700.
FISCAL EFFECT: None
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EXISTING LAW:
1) Provides that, with certain exceptions, evidence of a person's
character or trait of character (whether in the form of an
opinion, evidence of
reputation, or evidence of specific instances of conduct) is
inadmissible when offered to prove the person's conduct on a
specific occasion. However, evidence that a person committed a
crime, civil wrong, or other act may be admitted if relevant to
prove some fact other than the person's disposition to commit such
an act, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident.
(Evidence Code Section 1101.)
2) Provides the following exceptions to the general rule against
evidence of character or disposition:
a) The defendant in a criminal action may offer evidence of
his/her good character (in the form of an opinion or
evidence of reputation) and the State may offer rebuttal to
such evidence. (Evidence Code Section 1102.)
b) The defendant in a criminal action may offer evidence of
the victim's bad character (in the form of an opinion,
evidence of reputation, or evidence of specific instances
of conduct) and the State may offer rebuttal to such
evidence. (Evidence Code Section 1103(a).)
c) The State in a criminal action may offer evidence of the
defendant's violent character (in the form of an opinion,
evidence of reputation, or evidence of specific instances
of conduct) if the defendant has offered evidence of the
victim's violent character. (Evidence Code Section
1103(b).)
d) The State, in a criminal action in which the defendant is
charged with a sexual offense, may offer evidence of the
defendant's commission of another sexual offense or
offenses, to show the defendant's disposition to commit
such offenses. (Evidence Code Section 1108.)
3) Provides that a court, in its discretion, may exclude evidence
if its probative value is substantially outweighed by the
probability that its admission will: (a) necessitate undue
consumption of time, or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.
(Evidence Code Section 352.)
4) Defines "domestic violence" to mean "abuse committed against an
adult or a fully emancipated minor who is a spouse, former
spouse, cohabitant, former cohabitant, or person with whom the
suspect has had a child or is having or has had a dating or
engagement relationship." This bill defines "abuse" to mean
"intentionally or recklessly causing or attempting to cause
bodily injury, or placing another person in reasonable
apprehension of imminent serious bodily injury to himself or
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herself, or another." (Penal Code Section 13700.)
BACKGROUND:
1) According to the author, "SB 1876 provides that a defendant's
other acts of domestic violence, whether committed upon the victim
of the charged offense or another victim, are admissible to show a
defendant's disposition to commit acts of domestic violence, in
domestic violence prosecutions. This section is modeled on the
recently enacted Evidence Code 1108, which accomplishes the same
for evidence of other sexual offenses, in sexual offense
prosecutions. This measure is necessary to:
a) Remedy the Evidence Code's current inadequacy in
prosecutions
involving domestic violence.
b) Give jurors the crucial information that they need to come
to just decisions in prosecutions involving domestic violence.
c) Maintain proper safeguards for defendants.
The current scheme of admissibility for evidence of other bad
acts is inadequate in the area of domestic violence. Often
other acts of domestic violence committed on the current victim
or another victim are excluded as `too prejudicial' to the
defendant. Even where other acts of domestic violence are
admitted, the most logical inference, the propensity inference,
is strictly forbidden. This scheme insulates defendants and
misleads jurors into believing that the charged offense was an
isolated incident, an accident, or a mere fabrication.
For example, in the trial for the killer of actress Dominique
Dunne, several prior violent acts committed by the defendant on
the victim were excluded as too prejudicial. Moreover,
although the defendant's former girlfriend was available to
testify to the fact that the defendant had: broken her nose,
collapsed her lung, and punctured her eardrum, all of this
evidence was excluded from the trial. Not surprisingly, since
the jurors were not given full information, the jurors did not
return a conviction for murder. Rather, they found the
defendant guilty of voluntary manslaughter, on the theory that
this was an exceptional, isolated incident. SB 1876 remedies
these inequitable results by providing jurors with a more
accurate picture of the defendant and his behavior.
The propensity inference is particularly appropriate in the
area of domestic violence because on-going violence and abuse
is the norm in domestic violence cases. Not only is there a
great likelihood that any one battering episode is part of a
larger scheme of dominance and control, that scheme usually
escalates in frequency and severity. Without the propensity
inference, the escalating nature of domestic violence is
likewise masked. If we fail to address the very essence of
domestic violence, we will continue to see cases where
perpetrators of this violence will beat their intimate
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partners, even kill them, and go on to beat or kill the next
intimate partner. Since criminal prosecution is one of the
few factors which may interrupt the escalating pattern of
domestic violence, we must be willing to look at that pattern
during the criminal prosecution, or we will miss the
opportunity to address this problem at all.
Moreover, victims of domestic violence frequently are unable or
unwilling to cooperate in the prosecution of their batterers.
Victims may not cooperate because of a fear of retaliation, the
threat of retaliation, and the threat of economic loss. SB
1876 addresses this problem by allowing former victims of the
defendant to testify about the abuse they experienced. A
former victim is less likely to be facing an immediate threat
from the defendant and will likely be more willing to testify
against him/her.
SB 1876 adequately protects defendant's rights. This bill
merely makes other acts of domestic violence admissible; it
does not mandate admission. The specific retention of Evidence
Code 352 allows a judge to exclude the other acts if they are
more prejudicial than probative. Hearsay rules will remain in
effect to control what forms of evidence are admissible.
Notice requirements will allow defendants adequate time to prepare
a response to any evidence offered under this code section. The
use of the Penal Code definition of `domestic violence' narrowly
tailors the scope of this legislation to intimates and former
intimates. Finally, acts occurring more than ten years prior to
the charged offense will not be admissible under this code section
unless the court finds that it is in the interest of justice."
2) Existing law provides that, with certain exceptions, evidence
of a person's character or trait of character is inadmissible
when offered to prove the person's conduct on a specific
occasion. One exception to this rule provides that evidence
that a defendant in a sexual offense case has committed other
sexual offenses is admissible to show the defendant's
disposition to commit such crimes.
This bill will create an additional exception to the general
prohibition of character evidence for domestic violence cases.
The new provision provides that in a criminal action in which
the defendant is accused of an offense involving domestic
violence, evidence of the defendant's commission of other acts
of domestic violence is generally not made inadmissible by
Evidence Code Section 1101. This will allow evidence of the
defendant's commission of other acts of domestic violence to be
admitted in a domestic violence prosecution, to show the
defendant's disposition to commit such offenses.
3) Limits on the Scope of Admissible Evidence and Other
Protections. While providing a mechanism for the admissibility
of character evidence in domestic violence cases, this bill
contains the following limitations and protections:
a) The court's authority to exclude evidence under Evidence
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Code Section 352 when its probative value is substantially
outweighed by the probability that it will "create
substantial danger of undue prejudice" or "necessitate
undue consumption of time."
b) Both the charged and uncharged acts must involve acts of
"domestic violence" as defined in Penal Code Section 13700.
This limits the admissible evidence under the provisions
of this bill to conduct which is similar in character to
the charged domestic violence crime, and which was
committed against the victim of the charged crime or
another similarly situated person.
c) The prosecution must disclose evidence of other acts to
the defendant, generally at least 30 days before trial,
allowing the defendant adequate time to prepare any
necessary rebuttal to the evidence.
d) The provisions of this bill limit the admissibility of
evidence of other acts of domestic violence to acts
occurring within 10 years of the charged offense, unless
the court finds that evidence of acts occurring more than
10 years prior to the charged offense should be admissible
"in the interest of justice."
4) The Problem. Domestic violence prosecutions are difficult
because of pervasive problems of victim non-cooperation
resulting from a variety of factors, including the victim's
intimidation by or dependence on the defendant, or his or her
fear of jeopardizing their relationship. Where prosecution is
nevertheless necessary to stop extreme and escalating violence
by the abuser, prosecutors are presented to a unique degree
with
the problem of making a case with a victim who is uncooperative,
or even actively opposing the prosecution.
5) Proposed Amendments. The amendments proposed by the author are
non substantive. They would insert "or convictions" on page 3,
line 22, after "acts." This amendment is not necessary because
a conviction is nothing more than form of evidence showing that
an act occurred. The admissibility of an individual's prior
conviction is merely an exception to the hearsay rule, allowing
proof of a person's prior conviction to be admissible as
evidence that the underlying act occurred. Evidence of a
conviction is only admissible if the underlying act - the
commission of the offense -- is also admissible. Therefore,
provisions of the bill specifying that "evidence of acts
occurring more than 10 years before the charged offense is
inadmissible" would not be enhanced by the proposed amendment.
6) Statistics. From 1989 to 1994, the number of domestic violence
calls for assistance received by law enforcement agencies
statewide increased from 188,581 to 251,233. ( Crime and
Delinquency in California, 1994). In addition, according to
the City and County of San Francisco, 64% of women killed in
San Francisco in 1995 died as a result of family violence.
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7) Other Legislation. AB 2353 (Alpert) requires law enforcement
to serve domestic violence protective orders on the respondent
within a specified period of time and expands parole conditions
for person convicted of domestic violence offenses. AB 2353 is
currently before the Senate Judiciary Committee.
AB 3246 (Speier) removes provisions requiring the prosecution
to show that a defendant violated a protective order with an
act of violence or a credible threat of violence before he or
she can receive an increased punishment for having a prior
conviction for violating a protective order. AB 3246 is
currently set for hearing by the Senate Criminal Procedure
Committee on June 25, 1996.
AB 1994 (Burton/Alby) eliminates civil compromise in all
domestic violence cases. AB 1994 is currently before the
Senate Criminal Procedure Committee.
AB 2116 (Alby) authorizes a peace officer to arrest a domestic
violence offender without a warrant if the offender has
committed an assault or battery, or if the peace officer has
reasonable cause to believe that he or she committed the
assault or battery. AB 2116 is currently in Enrollment.
AB 2231 (Kuehl) makes various changes to the enforcement of
domestic violence-related protective orders, including those
issued in another state. AB 2231 was passed by the Senate
Criminal Procedure Committee and is currently before the Senate
Judiciary Committee.
AB 2170 (Knox) requires that all domestic violence perpetrators
be subject to mandatory arrest and taken into custody, not
merely cited and released, unless the arresting officer
determines that citing and releasing the violator would not
pose a danger to the victim. AB 2170 is currently before the
Senate Appropriations Committee.
SB 1444 (Solis) adds spousal rape to various provisions which
presently refer only to other forms of rape, as defined. SB
1444 is scheduled to be
heard today in this committee.
AB 882, (Rogan), Chapter 439, Statutes of 1995, added Section
1108 to the Evidence Code, establishing a general rule of
admissibility in sexual offense cases for evidence that the
defendant has committed offenses of the same type on other
occasions.
ARGUMENTS IN SUPPORT: Proponents argue that in domestic violence
cases, as in sexual offense cases, special evidentiary rules are
justified because of the distinctive issues and difficulties of
proof in this area. Specifically, evidence of other acts is
important in domestic violence cases because of the typically
repetitive nature of domestic violence crimes, and because of the
acute difficulties of proof associated with frequently
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uncooperative victims and third-party witnesses who are often
children or neighbors who may fear retaliation from the abuser and
do not wish to become involved.
ARGUMENTS IN OPPOSITION: Opponents argue that the rule excluding
character evidence was developed because evidence of other acts is
so prejudicial to the jury. The prosecution has the burden of
proving beyond a reasonable doubt that the individual committed
the charged crimes; allowing evidence of prior acts to prove
disposition to commit the crime in essence lowers the burden of
proof for the prosecution because they will be able to argue that
this crime was "in keeping with the person's character."
REGISTERED SUPPORT/OPPOSITION:
Support
The Office of the City Attorney of Los Angeles (Cosponsor)
California Alliance Against Domestic Violence (Cosponsor)
The Hon. Daniel E. Lungren, Attorney General
Doris Take Crime Victims Bureau
Contra Costa County District Attorney
Los Angeles County District Attorney
The Nicole Brown Simpson Charitable Foundation
California District Attorneys Association
California State Sheriff's Association
San Francisco District Attorney's Family violence Project
Sacramento County District Attorney
Contra Costa County District Attorney
Riverside County District Attorney
Ventura County District Attorney
Alameda County District Attorney
Santa Barbara County District Attorney
Santa Clara District Attorney
Orange County District Attorney
Stanislaus County District Attorney
Shasta County Domestic Violence Coordinating Council
California Peace Officers' Association and California
Police Chiefs' Association
San Diego City Attorney's Criminal Division
Alternatives to Domestic Violence
Case de Esperanza, Inc.
Marin Abused Women's Services
Sexual Assault and Domestic Violence Center
Shelter Services for Women
El Dorado Women's Center
Haven Women's Center
Shasta County Women's Refuge
DOVES of Big Bear Valley, Inc.
EYE Counseling & Crisis Services
Alliance Against Family Violence and Sexual Assault
Haven House, Inc.
Humboldt Women for Shelter
WEAVE
Calaveras Women's Crisis Center
San Diego County YWCA
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The Coalition Against Domestic and Sexual Violence
YWCA - WINGS For Battered Women and their Children
Monterey Peninsula YWCA
Women Shelter
Center for Domestic Violence Prevention
South Lake Tahoe Women's Center
San Diego Domestic Violence Council, Inc.
Valley Oasis Shelter
2 private citizens
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Analysis prepared by: Jennifer P. Anderson / apubs / (916)
445-3268